Family and Medical Leave Act:
Notice Requirements Under the New Regulations
By THERESA M. KULAT
Attorney, Ottosen, Sinson, Trevarthen & Britz, Ltd.
On April 1, 1995, the final regulations of the U.S.
Department of Labor Implementing the Family and
Medical Leave Act of 1993 ("Regulations"), 29 C.F.R.
§825 et seq. (1995), 1 became law. This article focuses on
one particular aspect of the new regulations: notice. 2 It
describes generally an approach that units of local government (other than school districts) can take to avoid
being taken off guard by an employee's request for
leave under the Act. 3
Background
Enacted in 1993 to alleviate situations where individuals are forced to choose between tending to family
emergencies and maintaining job security, the Family
and Medical Leave Act of 1993 (the "Act" or "FMLA"),
29 U.S.C. 2601 et seq., requires certain employers to
provide up to 12 weeks of unpaid leave for certain
qualifying reasons, specifically (1) for the birth of the
employee's child and to care for the child; (2) for
placement with the employee of a child for adoption or
foster care; (3) to care for the employee's spouse, child,
or parent with a serious health condition; and (4) due to
a serious health condition that renders the employee
incapable of performing the functions of his or her job.
Because all units of local government are considered
"employers," all are subject to posting and record-keeping requirements of the Act. Only if the employer
has 50 or more employees, however, are its employees
entitled to leave.
The Act and the Regulations specify the duties of
employees and employers, entitlements of eligible employees and the penalties for failure to follow the Act. If
a potential FMLA situation arises, you should consult
the Regulations 4 or contact your attorney to determine
whether or not the leave is FMLA-qualified and how
specifically to proceed.
Written Guidance
The Regulations provide that if an FMLA-covered
employer has any eligible employees 5 and has any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook,
information concerning FMLA entitlements and employee obligations under the FMLA must be included
in the handbook or other document. They also provide
that whenever the employer designates leave as FMLA,
the employer must provide "written guidance," either
in the form of copies of its own policies or the FMLA
Fact Sheet available from the U.S. Department of Labor, Wage & Hour Division. 6
Be aware that several sections of the Regulations
state, "If an employer fails to select [an option], the
option that provides the most beneficial outcome to the
employee will be used." Therefore, it is wise to adopt
an FMLA policy or to check your current policy to
understand the ramifications of the different options
you may have already chosen. 7
Employee Notice
Foreseeable Leave
An employee must give the employer at least 30
days advance notice before FMLA leave is to begin
when the need is foreseeable. If 30 days is not practical,
then notice must be given as soon as practical, which
would ordinarily mean within one of two business days
of when the need for leave becomes known. When
planning medical treatment, the employee must consult
with the employer and make reasonable effort to schedule the leave so as not to unduly disrupt the employer's
operations. This is subject to the approval of the employee's health care provider.
An employee's notice may be verbal and should set
forth the anticipated timing and duration of the leave
along with sufficient information to enable an employer to determine if the leave qualifies under FMLA.
The employee need not expressly assert rights under
the FMLA or even mention the FMLA. In addition, the
employer has the option of waiving the FMLA notice
requirements.
April 1995 / Illinois Municipal Review / Page 15
Unexpected Leave
When the approximate timing of the need for leave
is not foreseeable, an employee should give notice to
the employer of the need for FMLA leave as soon as
possible defined as "generally one or two working days,
except in extraordinary circumstances."
Notice may be given by the employee's spokesperson (e.g., spouse, physician) if the employee is unable to
do so personally. Notice may be provided in person, by
telephone, fax machine or other electronic means, and
again, the employee need not expressly assert rights
under the FMLA or even mention the FMLA.
Employer Designation
After Employee Notice
Once an employee has requested FMLA leave, the
employer must first supply the employee with a "written guidance" on FMLA either in the form of its own
policies addressing the subject or the Department of
Labor Fact Sheet containing a description of employee
rights and obligations. The employer must also provide, among other things, notice that the leave is designated and will be counted as FMLA leave "within a
reasonable time after notice of the need or leave is given
by the employee — within one or two business days if
feasible." An employee may choose to substitute
accrued paid leave for FMLA leave.
Without Express Employee Notice
Because the Act allows the employer to require that
the employee substitute accrued paid leave for FMLA
leave 8 but states that in the event of a dispute the option
that provides the most beneficial outcome to the employee will be used, employers must be careful when
designating leave as FMLA leave without the employee's request. The most likely scenario occurs when
an employee fails to give notice that they are using paid
leave for an FMLA qualifying purpose and the employer wants to count the paid leave toward the employee's FMLA entitlement.
In this case, the employer must follow detailed
procedures. First, the employer must have already put
employees on notice of the requirement that paid leave
be substituted for FMLA leave in its "written guidance." Second, once the employer "acquires knowledge" that a specific employee's leave either unpaid or
paid (including worker's compensation or disability
leave) is being taken for an FMLA-qualified reason, the
employer must "promptly," defined as "within two business days about extenuating circumstances," notify the
employee of the designation in the manner set forth in
§825.301 of the Act.
In some instances, the employer may make a preliminary designation. Upon receipt of the additional
information requested, a final designation can be made
or the designation can be withdrawn. This is appropriate where the employer knows the reason for the leave
but has not been able to confirm that the leave qualifies
under FMLA, or where the employer has requested
medical certification 9 which has not yet been received,
or where the parties are in the process of obtaining a
second or third medical opinion. The preliminary designation should be made at the time leave begins, or as
soon as the reason for the leave becomes known. If the
medical certifications fail to confirm that the reason for
the absence was an FMLA leave, the employer must
withdraw the designation with written notice to the
employee.
If an employer fails to provide the employee with
proper notice within two working days of its "receipt of
knowledge," it may not designate the leave as FMLA-qualifying retroactively. It does, however, still have the
right to designate leave prospectively as of the date it
notifies the employee of its designation.
The following example illustrates these rules. Joe
has chest pains on Sunday night, goes into the hospital
for tests, and is ordered to stay overnight. On Monday
morning, his wife notifies the office manager that he
will be using five sick days for the rest of the week but
does not state the reason for the use of sick leave. Joe's
doctor puts him through tests on Monday and Tuesday
and tells him to rest through Friday. On Tuesday, the
office manager learns that Joe is receiving inpatient
Page 16 / Illinois Municipal Review / April 1995
treatment for a heart condition. If the employer notifies
Joe by Thursday that his leave is designated FMLA, all
five days (one workweek) will be counted against Joe's
12-week FMLA entitlement (assuming the employer's
written guidance stated the requirement of paid leave
substitution). If the employer gives Joe notice on Friday, only one day will be counted against his entitlement.
When an employee is on leave using accrued paid
vacation and he or she seeks to extend leave as unpaid
FMLA, the employee must provide the employer with
proper notice. If the employer gives proper notice, the
entire or some portion of the paid leave period may be
retroactively counted as FMLA leave to the extent that
the leave period qualifies as FMLA leave.
For example, an employee is granted two weeks
paid vacation leave for a skiing trip. In mid-week of the
second week, the employee contacts the employer for
an extension of leave as unpaid leave and advises that at
the beginning of the second week of paid vacation
leave the employee suffered a severe accident requiring hospitalization. The employer may notify the employee that both the extension and the second week of
paid vacation leave (from the date of the injury) is
designated as FMLA leave. On the other hand, when
the employee takes sick leave that turns into a serious
health condition (e.g., bronchitis that turns into bronchial pneumonia) and the employee gives notice of the
need for an extension of leave, the entire period of the
serious health condition may be counted as FMLA
leave.
Form and Content of Employer Notice
Notice of FMLA designation may be given orally or
in writing. If the notice is oral, it must be confirmed in
writing, not later than the following payday (unless the
payday is less than one week after the oral notice, in
which case the notice must be not later than the subsequent payday). The written notice may be in any form,
including a notation on the employee's pay stub. The
Department of Labor has a form notice which should
be modified to fit your particular situation.
The notice, according to §825.301 must contain:
1. information that the leave will be counted
against the employee's annual FMLA leave entitlement;
2. any requirements for the employee to furnish
medical certification of a serious health condition and the consequences of failing to do so;
3. the employee's right to substitute paid leave and
whether the employer will require the substitution of paid leave, and the conditions related to
any substitution;
4. any requirement for the employee to make any
premium payments to maintain health benefits
and the arrangements for making such payments, and the possible consequences of failure
to make such payments on a timely basis;
5. any requirement for the employee to present a
fitness-for-duty certificate in order to be restored
to employment;
6. the employee's status as a "key employee" 10 and
the potential consequence that restoration may
be denied following FMLA leave, explaining the
conditions required for such denial;
7. the employee's right to restoration to the same or
an equivalent job upon return from leave; and
8. the employee's potential liability for payment of
health insurance premiums paid by the employer
during the employee's unpaid FMLA leave if the
employee fails to return to work after taking
FMLA leave.
It may also include other information, such as whether
the employee must report periodically on his or her
status and intent to return to work.
Conclusion
Under the FMLA, eligible employees are granted
April 1995 / Illinois Municipal Review / Page 17
considerable rights in the event of family emergencies.
The Act and the Regulations contain provisions that
help employees meet family responsibilities but also
accommodate the legitimate interests of employers.
Employers have some leeway in their ability to choose
different options provided they do so by policy in advance of trying to impose those options. If a dispute
arises, a key consideration will be whether or not the
notice given to the employee was timely and proper. •
1. Citations in the text will refer to section number only.
2. For details on what types of situations require that leave be granted and
for information on the entitlement of an employee on leave, please consult the
Regulations and/or your attorney. Discussion of the specific requirements for
intermittent or reduced schedule leave are beyond the scope of this article.
3. The regulations also contain specific provisions that address needs
particular to the school setting and are beyond the scope of this article. See,
Subpart F, 29 C.F.R., 825.600 et seq.
4. A copy of the full text of the Regulations and other material are available
from the U.S. Department of Labor, Wage and Hour Division, (312) 353-8145.
5. An "eligible employee" is an employee of a covered employer who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during the
12-month period immediately preceding the commencement of the
leave, and
(3) is employed at a worksite where 50 or more employed by the
employer within 75 miles of the worksite.
6. This is also available by calling (312) 353-8145.
7. The most important option that an employer has is the right to require
that accrued paid leave be substituted for FMLA leave (825.207). Other
options include the manner of choosing the 12-month period (825.200), the
requirement that employees provide medical certification (825.305) and the
option of allowing an employee to accrue additional benefits while on leave
(825.215(d)(2)).
8. Employer may not require the use of compensatory time accrued
(825.207).
9. The employer may require that leave related to the serious medical
condition of the employee or the employee's family member be conditioned on
receipt of proper medical certification of a health care provider. (5825.305)
Sample certifications are available from the DOC.
10. For information on the definition of and treatment of "key employees", see 825.218 and 825.219.
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